Felony Murder Rule

by Sheldon Siegel

  “No.” Isabel didn’t know where Rosie was heading.

  “You remind me of her. She’s in college at USC.”

  Isabel didn’t know what to do, so she shrugged.

  Erickson spoke from his seat. “Your Honor, I fail to see any relevance here.”

  Neither did I.

  He added, “As far as I can tell, Ms. Fernandez didn’t ask Ms. Cruz a question.”

  She hadn’t.

  Rosie addressed the judge in a tone that she might have used while they were having coffee at Peet’s after Pilates class. “I’m getting to my point.”

  “Make it fast, Ms. Fernandez.”

  “Yes, Your Honor.” She turned back to Isabel. “Do you have a boyfriend?”

  Erickson was on his feet again. “Objection. Relevance.”

  Rosie’s tone turned lawyerly. “I will show relevance in just a moment.”

  “I’ll give you a little leeway, Ms. Fernandez, but you’d better get there very soon.”

  “Yes, Your Honor.” Rosie smiled at Isabel and repeated her question. “Do you have a boyfriend?”

  “Yes.”

  “What’s his name?”

  “Henry Minh.”

  “How long have you been together?”

  “About six months.”

  Erickson was still standing. “I must object, Your Honor. There isn’t a shred of relevance.”

  Rosie held up a hand. “There will be in a moment.”

  “Get to the point now, Ms. Fernandez.”

  “Yes, Your Honor.” She inched closer to the witness box. “Isabel, my daughter has a boyfriend, too.”

  No, she doesn’t.

  “Grace’s boyfriend is a good guy. I like him a lot.” In response to my inquisitive look, Rosie gave me a glance that said, “Trust me.” “Does your father like your boyfriend?”

  Isabel darted another glance at Ortega. “Yes.”

  “That’s great. Because we haven’t always been ecstatic about all of Grace’s boyfriends. I’ll bet maybe your dad hasn’t always been so happy about some of your boyfriends, either, right?”

  “Maybe a little.”

  “But he was always polite around them, right? Even if he didn’t like them?”

  “Right.”

  “And even if their background was a little different from yours, right?”

  “Right.”

  “Because your dad’s store is in a neighborhood where there are people of a lot of different nationalities, right?”

  “Right.”

  “So he must be pretty understanding if, say, you brought home a boyfriend of another nationality or religion, right?”

  “For the most part.”

  It was a more equivocal answer than I expected. Kids are lousy liars.

  Rosie was standing right in front of Isabel where she was blocking her father’s view. “You probably don’t know this, but Grace’s father—my ex-husband—used to be a priest. He didn’t like it when she dated boys who weren’t Catholic. You know what I mean?”

  “Sort of.”

  “But your father didn’t have a problem with Henry just because Vietnamese, right?”

  “Right.”

  Rosie responded with a puzzled look. “Maybe a little?”

  A hesitation. “Maybe.”

  “But he got over it when he got to know Henry, right?”

  “It took him a little while.”

  “But he came around, right?”

  “For the most part.” She reconsidered. “Yes, he did.”

  I saw where Rosie was going.

  Rosie’s tone turned serious. “Parents are very protective—especially fathers, right?”

  “Right.”

  “Isabel, did your father dislike Henry because he’s Vietnamese?”

  A hesitation. “Kind of.”

  “Does your father have a problem with Vietnamese people?”

  Another pause. “Maybe a little.”

  “Maybe it’s because he works in a neighborhood where there a lot of Vietnamese people, right? And when he has problems at his store—like somebody trying to rob him—it’s probably a Vietnamese person who has given him trouble, right?”

  “Right.”

  “Maybe that’s why your father wasn’t so happy when you started going out with Henry.”

  “Maybe.”

  “Maybe your father was unhappy when a young Vietnamese man came into his store and smiled at you, right?”

  “I don’t know.”

  “Did he tell you not to date Vietnamese boys?”

  Isabel was starting to cry. “Yes.”

  “I think your father was unhappy because you were going out with a Vietnamese boy. In fact, it’s the third Vietnamese boy that you’ve dated in the past two years, isn’t it?”

  “Yes, but—,”

  “I think your father shot Duc Tho because he didn’t like the way that he looked at you.”

  “Not really. I mean no.”

  “He was already angry because you were dating a Vietnamese boy, wasn’t he?”

  “Sort of. I mean no.”

  “Did he ever threaten one of your boyfriends?”

  “No.”

  “But he made it clear where he stood, right?”

  “Yes.”

  Erickson finally stopped them. “Objection, Your Honor. This is outrageous. Ms. Fernandez’s line of questioning is pure speculation.”

  Yes, it was.

  “Furthermore, Thomas Nguyen is on trial here, not Ortega Cruz.”

  “Maybe he should be,” Rosie said. Her eyes locked onto mine for an instant, then she turned back to the judge. “Your Honor, we would like to request a meeting in chambers.”

  “For what purpose?”

  “To make a motion.”

  61

  “INSTINCT”

  Judge McDaniel drummed her fingers on her desk. “What’s this about, Ms. Fernandez?”

  Rosie’s tone was respectful. “I think you know, Your Honor.”

  “It needs to come from you.”

  “Based up on the testimony that we just heard from Isabel Cruz, we now have evidence that her father was predisposed to dislike young Vietnamese men—especially if they showed any interest in his daughter. It proves that Ortega Cruz had independent criminal intent to shoot Duc Tho when he came inside his store.”

  Erickson’s tone was incredulous. “You’re saying that Ortega murdered Tho?”

  “It’s up to you to decide on the charge.”

  “He acted in self-defense.”

  “No, he didn’t. We have introduced evidence that Tho did not, in fact, demand money. We have cast substantial doubt upon Ortega’s claim that Tho was carrying a gun when he entered the store. We already know from the video that Tho never pulled a gun—if he was carrying.”

  “His fingerprints were on the gun.”

  “Which could have been planted.” Rosie turned and spoke to the judge. “There was no provocative act when Tho came inside the store. As a result, under California law as written, Thomas Nguyen cannot be guilty of felony murder.”

  “Do you wish to make a motion, Ms. Fernandez?”

  “We do, Your Honor.” She pointed at me.

  “Your Honor,” I said, “the defense moves that all charges against our client be dropped as a matter of law.”

  “Do you wish to say anything, Mr. Erickson?”

  “Ortega Cruz admitted that he shot Duc Tho in self-defense. He testified that Tho came into the store, demanded money, and threatened him with a gun—even if he didn’t take it out of his pocket. A gun was found under Tho’s body—with his fingerprints. That’s more than enough evidence to conclude that Tho engaged in a provocative act. At the very least, it’s an issue of fact that should be left to the jury to decide.”

  Judge McDaniel pushed out a sigh. “I find Ms. Fernandez’s arguments more persuasive than yours, Mr. Erickson. I don’t know if there is sufficient evidence to bring charges against Ortega Cruz for murder or even manslaughter. Tha
t’s up to you. On the other hand, I believe that the defense has now provided sufficient evidence to question Mr. Cruz’s motives. Moreover, there is substantial doubt that Mr. Tho engaged in a provocative act under California law. I am therefore ruling that as a matter of law, the felony murder rule does not apply to the actions—or, more precisely, the inactions—of Thomas Nguyen. As a result, the defense motion is granted and the charges are dismissed.”

  My heart beat faster. “Thank you, Your Honor.”

  “We’re done. I’m going to dismiss our jury.”

  * * *

  “I don’t think Erickson is going to invite me to a ballgame anytime soon,” I said.

  Rosie chuckled. “He’ll get over it. I don’t think he was crazy about the felony murder charge in the first place. It was probably Ward’s idea. There will be other cases. We’ll all need to work together constructively.”

  “Spoken like a diplomat.”

  She arched an eyebrow. “Or a politician.”

  We were sitting at the defense table in the otherwise empty courtroom. Thomas and Melinda had gone home to celebrate. Rosie was in a philosophical mood. I was dead tired.

  “Were you able to reach Rolanda?” I asked.

  “Briefly. She’s doing fine and going home tomorrow. I told her that we would come over and see her this afternoon. She was pleased with the result.”

  “She’s going to be an excellent lawyer.”

  “She’s already an excellent lawyer.” Rosie closed her briefcase. “Were you able to talk to any of the jurors before they left?”

  “A couple. They were happy to go home and relieved that they didn’t have to make a decision.”

  “Any hint on which way they were leaning?”

  “The woman from Verizon said she would have been hard-pressed to vote for a conviction. The Google guy was leaning our way.”

  “At the very least, it sounds like we would have ended up with a hung jury.” She smiled. “Of course, if I had been given an opportunity to do my closing, I would have convinced them to vote for an acquittal.”

  “Quite right. Do you think Ortega shot Tho because he smiled at his daughter?”

  “Don’t know. Don’t care. Doesn’t matter.”

  “You didn’t answer my question.”

  “Could be. We didn’t need to prove it. We just had to argue it.” She took a deep breath. “I feel bad for Isabel. It’s hard being a teenager. It was bad enough that she was there when her father shot Tho. She didn’t want any part of this.”

  “You think Ortega shot Tho?”

  “Yes. Do you?”

  I nodded. “Yes. Do you think they’ll press charges?”

  “I doubt it.” Rosie looked over at the empty seat where Ortega had been sitting. “Ortega left court without a police escort. Nobody was in a hurry to arrest him. If they do, it will be tough to prove murder or even manslaughter beyond a reasonable doubt. He’ll say he acted in self-defense.”

  “He’ll probably win that argument. His son and nephew will corroborate his self-defense story.”

  She arched an eyebrow. “Is there any doubt in your mind that Tho walked in with a gun?”

  “Nope.”

  “Me neither.” She stood up. “We’ll let Ward and Erickson decide if they’re going to press charges. For now, our work is done.”

  “I was surprised that Judge McDaniel ruled in our favor.”

  “I wasn’t. Betsy thinks the felony murder rule is a joke.”

  “Why did she keep ruling against us?”

  “Because she’s a good judge. She put aside her personal views and applied the law as it’s written. That’s what judges are supposed to do. This morning, we finally gave her a legitimate legal basis to rule for us.”

  “She could have let the jury decide.”

  “Juries are unpredictable. She wanted to resolve the case herself.”

  “How do you know?”

  “I don’t. I’ll ask her about it at Pilates next week.”

  Rosie. “How did you know that Isabel would say that her father didn’t like her Vietnamese boyfriend?”

  “Instinct. Fathers never like their daughters’ boyfriends. And it wasn’t my instinct. It was Rolanda’s.”

  I wasn’t surprised. “Let’s go see her.”

  “I just texted her that we’re on our way.”

  “Do you have time for a celebratory drink afterward?”

  “I’ll have to take a raincheck, Mike. I have a fundraiser tonight.”

  62

  “HAPPY BIRTHDAY, TOMMY”

  The newly elected Public Defender of the City and County of San Francisco squeezed my hand. “Are you okay?” Rosie asked.

  My white dress shirt was sticking to my body in the stifling heat. “I’ll be fine.”

  “It’s okay to cry.”

  “The first thing they teach you at the seminary is that a priest can’t cry at a funeral.”

  I inhaled the tropical air as I looked up at the mature trees forming a canopy over us. Six weeks had passed since Thomas’s trial had ended. At noon on November 25th, a dozen of us were standing in a semi-circle near the stump of a bamboo tree outside a village called Cib Tran Quang, fifty miles southeast of Haiphong. The old dirt road was now paved. The huts had been replaced by cabins with indoor plumbing and electricity. A gate marked the entrance to the cemetery. The soil around the stump had been freshly raked and was cordoned off by metal stakes adorned in red ribbons.

  I turned to Melinda. “It’s just the way you described it.”

  “It’s just the way that I remembered it.”

  “Today would have been your father’s sixtieth birthday.”

  “I know.” My niece was stoic as she turned to Thomas, who was wearing a gray suit. “That’s where we buried your grandparents. I’m sorry that you never got to meet them.”

  Grace, Pete, Tommy, Big John, and I were standing to Rosie’s left. Tommy looked stylish in a navy suit. Grace wore a white blouse and a black skirt. Her eyes were filled with tears. Pete was wearing a suit for the first time since our mother had died almost ten years earlier. Big John stood with his arms folded, sunglasses covering his eyes.

  I motioned at a razor-thin man standing at attention next to the stump. He was wearing a Vietnamese Army dress uniform. His breast was covered with medals. On either side of him stood two soldiers of lesser rank, also in dress uniforms. Each of them held a white urn.

  The three soldiers stepped forward and marched over in unison and stopped in front of us. The ranking soldier spoke to me in American English.

  “Mr. Daley, I am General Hoang. On behalf of the Vietnamese government, we wish to express our deepest condolences to you and your family. We are very sorry for your loss.”

  “Thank you, General.” My eyes filled with tears. “We are very grateful for your efforts in helping us resolve this matter after so many years.”

  “The war ended a long time ago, Mr. Daley.”

  And after forty long years, it was finally over for our family.

  “Mr. Daley,” he continued, “as in most cultures, it is contrary to our customs to disturb the remains of the deceased. However, in this instance, and at the request of the families, we made an exception.” He motioned toward his two subordinates, who stepped forward. “We are honored to present these remains to you. Our scientists were able to uncover some bone fragments with the DNA of Sergeant Thomas James Charles Daley, Jr. and Ms. Lily Ho. We also found a gold filling that matched the dental records of your brother.”

  “Thank you.”

  “We wanted to inform you that we have examined the records of this village, and we have determined that Sergeant Daley and Ms. Ho were married here on August twenty-third, nineteen seventy-five. Their daughter, Xuan, was born on July fourteenth, nineteen seventy-six. We will try to provide additional details in due course.”

  One of the soldiers handed me an urn holding Tommy’s remains. The other soldier handed the second urn to Melinda. Tears streamed down he
r face as she thanked them.

  General Hoang stepped back and saluted us. Then he and his subordinates marched over to the area near the gravesite and stood at attention.

  A procession walked toward us from the opposite side of the gravesite. The senior senator of the State of California was flanked by her husband and a U.S. Marine colonel in her dress uniform. The colonel held an American flag, folded in the traditional triangle shape. The senator and her husband shook hands with each of us. The soldier presented the flag to me and saluted.

  The senator spoke in a somber tone. “On behalf of the United States of America, we are very grateful for your brother’s service to our country and his sacrifice. We are also very sorry for your family’s loss.”

  “Thank you.”

  “When we return to San Francisco, we have made arrangements for your brother’s burial with full military honors.”

  “He would have liked that.”

  The senator lowered her voice. “I remember your brother, Mr. Daley. I saw him play at St. Ignatius and Cal. He was an outstanding football player and a fine young man. I’m sure you have wonderful memories.”

  “We do.”

  The senator shook my hand. So did her husband. The Marine saluted me. I struggled to maintain my composure as the memories came flooding back in the middle of the Vietnamese jungle.

  Pete came over and put a hand on my shoulder. “You’re the ex-priest, Mick. You should say something.”

  I thought about Tommy throwing the football in our backyard. I remembered the celebration at our house after St. Ignatius won the city championship. I recalled the pride in my father’s eyes when he signed the letter of intent to play at Cal. I remembered my mother’s anguish when he boarded the plane to Vietnam. And the horrible night when the Marines appeared on our doorstep to report that he had gone missing. In my search for answers, I decided to become a priest. A few years later, I didn’t find those answers and decided to go to law school. After almost four decades, I was finally getting an opportunity to give Tommy the goodbye that he had always deserved.

  “Gather around,” I said. “I want everybody to hold hands. I’m going to keep this short because it’s hot. And because that’s what Tommy would have wanted.”

  We formed a semi-circle in front of the stump. I placed the urn holding Tommy’s remains along with the flag on the small table in front of us. Melinda put the urn holding her mother’s remains next to Tommy’s. I closed my eyes and took a deep breath. Then I struggled to find the right words.